Papers Please

The Real ID Act: A national ID card in disguise? Or necessary 21st-century security?

And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads: And that no man might buy or sell, save he that had the mark, or the name of the beast, or the number of his name. -- Revelation 13:16-18

Comparing the Real ID Act to the so-called mark of the beast clearly is an exaggeration, though hundreds of Web sites make that exact claim. Mark of the beast or not, considerable hysteria surrounds this piece of federal legislation, signed into law May 11, 2005.

Just what is it about this law that has people up in arms, claiming everything from police state to fascism to a sign of the apocalypse? What good, if any, will the Real ID Act accomplish?

Concern about the Real ID Act stems from two primary sources: First, the method by which the legislation passed Congress generated significant controversy. Second, the legislation's cryptic content is an open invitation to speculation.

Proponents of the Real ID Act say the legislation is simply a response to the 9/11 Commission's recommendations. House Judiciary Committee Chairman James Sensenbrenner, R-Wis., introduced H.R. 418 on Jan. 26, 2005.

"The goal of the Real ID Act is straightforward: It seeks to prevent another 9/11-type attack by disrupting terrorist travel," Sensenbrenner said in response to the fact that all but one of the 9/11 hijackers used state IDs or drivers' licenses to board the planes.

Though the Real ID Act's purpose may be straightforward, its creation, passage and implementation are anything but.

Real ID Act Reality
The Real ID Act was created to address several security concerns. Foremost, the act creates a set of federally mandated standards regarding the information on state drivers' licenses. The act also requires states to follow specific procedures in terms of how they issue drivers' licenses. The act's primary goal, according to its sponsors, is to thwart future terrorism. In addition, the Real ID Act aims to improve border security, refine the definition of a refugee, and modernize deportation and asylum laws.

"What [the Real ID Act] tries to do is take recommendations and vulnerabilities that were highlighted by the 9/11 Commission," said Jeff Lungren, communications director for the House Judiciary Committee. "The 9/11 Commission recommends setting national standards for the issuance of identity documents. So the legislation aims to disrupt, dismantle and prevent another terrorist attack to the extent that terrorists and other criminals use identity documents that are easily counterfeited."

The Real ID Act piggybacked on the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 2005 (H.R. 1268) -- a bill no member of Congress would dare vote against. This maneuver has resulted in accusations of the bill's sponsors subverting democracy in a power grab that demolishes states' rights.

"I think the process of this [bill's passage] caused a ton of controversy itself," said Ari Schwartz, associate director of the Center for Democracy and Technology. "This bill was done in a completely undemocratic manner, and I think that angered a lot of people."

Most opponents share this displeasure with the way the bill became law. Others have voiced concern that there's been too little coverage of the Real ID Act, considering the legislation's enormity.

"If you haven't heard much about the Real ID Act in the newspapers, that's not an accident," said author and internationally renowned security technologist Bruce Schneier. "The politics of the Real ID Act are almost surreal. It was voted down last fall, but has been reintroduced and attached to legislation that funds military actions in Iraq. This is a 'must-pass' piece of legislation, which means there has been no debate on the Real ID Act. No hearings, no debates in committees, no debates on the floor. Nothing."

Many opponents claim that the Real ID Act is, by establishing federal standards for state-issued drivers' licenses, creating a de facto national ID card, or at least a national ID system.

"The United States is getting a national ID card," said Schneier. "The Real ID Act establishes uniform standards for state drivers' licenses, effectively creating a national ID card. It's a bad idea, and is going to make us all less safe. It's also very expensive. And it's all happening without any serious debate in Congress."

Real ID Act supporters object to claims made by Schneier and others, calling the national ID card suggestion a fallacy. According to Lungren, the outrage about the Real ID Act is overblown.

"It's not a national ID card," said Lungren. "All it does is set minimum standards for the issuance of state documents if you want them to be accepted as a form of identification to a federal official."

Lungren points to some state drivers' licenses on which he says the Real ID Act provisions were based.

"California has some of the best standards in the country, along with New York, Florida and Virginia. Those states are very close to the standard. In fact, what they're doing and have been able to do is what the Real ID Act is modeled after."

It should be noted, however, that of the 9/11 terrorists, as many as seven carried Florida drivers' licenses and at least four carried Virginia drivers' licenses, which obviously calls into question the effectiveness of those states' driver's license security measures prior to Sept. 11, 2001.

Some changes to the licenses have taken place, but none that would have prevented the terrorists from obtaining licenses again. Such discussions in both state legislatures were ongoing prior to the passage of the Real ID Act.

Lungren also defended how the Real ID Act made its way through Congress.

"We didn't sneak anything," he said. "These provisions in the Real ID Act hung up the intelligence bill last year for a couple of weeks. They were very much at the forefront -- very much debated. We had a debate during the conference committee with the Senate in negotiations.

"Chairman Sensenbrenner and others talked about these issues. That was in October [2004]. We had an up or down vote on these provisions in the House in February. The Senate chose not to take it up, and it was then attached to the Iraq/Afghanistan supplemental. So there was plenty of debate on these issues. That's what you'll frequently hear. If you can't win on the substance, you complain about the process."

Those on both sides of the issue express strong opinions, and to separate fact from fiction, the legislation's actual requirements must be examined.

After May 11, 2008, federal agencies, including the Transportation Security Administration, will no longer accept state drivers' licenses unless they have the following data included or embedded: the driver's full legal name, date of birth, gender, permanent address, signature, driver's license number and digital photo of the person's face. In addition, the card must include physical security features -- not yet determined -- and be machine-readable by technology that has not yet been defined.

These undefined elements of the legislation give cause for concern, especially because in less than three years, the entire country will have new drivers' licenses.

"I think there are still a lot of questions up in the air," said Schwartz. "You can look at the American Association of Motor Vehicle Administrators [AAMVA] standards for some of the issues, like 'machine-readability,' and in the Real ID Act, that term is undefined. It uses the term 'digital photograph,' and that's not defined. It says that [states] need to give 'electronic access' to other states on the back end, and that's not defined. If I were a state, I would hope that would be resolved in the DHS soon."

To obtain a valid driver's license under the new federal mandates, a citizen will be required to present extensive documentation. Each state will require, and must be able to verify, a photo identity document -- or a nonphoto identity document that contains both the applicant's full legal name and date of birth. The state must also verify a person's name, primary address, date of birth and Social Security number -- or proof of Social Security ineligibility.

Unfortunately for everyone, it appears more than likely these documents will need to be presented in person, which means everyone in America will need to head to the DMV before May 11, 2008.

Citizen Impact
Despite the questions over the Real ID Act's passage through Congress, and the uncertain language used in its text, the legislation will make it much more difficult to produce and distribute fraudulent identification documents. The bill requires states to implement advanced security features, which the DHS will define in coming months.

It's unclear, however, when exactly those details will arrive.

"There are people here working on it," said DHS spokesman Jarrod Agen. "But I haven't seen any kind of official timeline for regulations or definitions just yet."

Prospective vendors of the new technology aren't waiting for DHS announcements. Companies such as Anteon and Lasercard -- based in Fairfax, Va., and Mountain View, Calif., respectively -- have developed high-tech ID cards that incorporate security features such as embedded biometrics, laser engraving and optical memory storage, which are just a few features that can address the Real ID Act's requirements.

"One of the things called for in the Real ID Act is increased security and the ability to store data and read data back, machine authentication, those kinds of things," said Steve Price-Francis, vice president of business development at Lasercard Systems Corp., the company that produces the card platform for U.S. green cards. "We have a security feature based on our optical memory technology which will provide a layered level of security and counterfeit resistance. It will provide very rapid visual recognition. We're able to permanently, irreversibly and unalterably laser-engrave a cardholder's face onto a piece of our optical memory."

Another Real ID Act requirement is that every state's DMV databases be available to all other states. The information in these databases must consist of all the information printed and embedded in each person's driver's license. In addition, paper copies of the documents required to obtain a driver's license must be held by each state for seven years, while images of such documents must be held by each state for 10 years.

Though these technologies and requirements are sure to ignite ire with privacy advocates, Jason King, public affairs director of AAMVA, says many states are already practicing most of the Real ID Act requirements.

"The thing to note, that some people tend not to report, is that state DMV administrators are ahead of the curve in building more integrity into the driver's license framework," said King. "A number of the Real ID Act provisions are already under way. For example, one of the directives in the Real ID Act says states must verify the Social Security number of applicants. Well, 42 states are already doing that today, so that's good news. Also, the Real ID Act requires four reliable forms of ID prior to licensing. Most states already require three."

A critical point of contention for states, even if they are already engaged in some Real ID Act requirements, is whether they will be forced to reissue new licenses to those who already have them.on the Real ID Act. No hearings, no debates in committees, no debates on the floor. Nothing."

Many opponents claim that the Real ID Act is, by establishing federal standards for state-issued drivers' licenses, creating a de facto national ID card, or at least a national ID system.

"The United States is getting a national ID card," said Schneier. "The Real ID Act establishes uniform standards for state drivers' licenses, effectively creating a national ID card. It's a bad idea, and is going to make us all less safe. It's also very expensive. And it's all happening without any serious debate in Congress."

Real ID Act supporters object to claims made by Schneier and others, calling the national ID card suggestion a fallacy. According to Lungren, the outrage about the Real ID Act is overblown.

"It's not a national ID card," said Lungren. "All it does is set minimum standards for the issuance of state documents if you want them to be accepted as a form of identification to a federal official."

Lungren points to some state drivers' licenses on which he says the Real ID Act provisions were based.

"California has some of the best standards in the country, along with New York, Florida and Virginia. Those states are very close to the standard. In fact, what they're doing and have been able to do is what the Real ID Act is modeled after."

It should be noted, however, that of the 9/11 terrorists, as many as seven carried Florida drivers' licenses and at least four carried Virginia drivers' licenses, which obviously calls into question the effectiveness of those states' driver's license security measures prior to Sept. 11, 2001.

Some changes to the licenses have taken place, but none that would have prevented the terrorists from obtaining licenses again. Such discussions in both state legislatures were ongoing prior to the passage of the Real ID Act.

Lungren also defended how the Real ID Act made its way through Congress.

"We didn't sneak anything," he said. "These provisions in the Real ID Act hung up the intelligence bill last year for a couple of weeks. They were very much at the forefront -- very much debated. We had a debate during the conference committee with the Senate in negotiations.

"Chairman Sensenbrenner and others talked about these issues. That was in October [2004]. We had an up or down vote on these provisions in the House in February. The Senate chose not to take it up, and it was then attached to the Iraq/Afghanistan supplemental. So there was plenty of debate on these issues. That's what you'll frequently hear. If you can't win on the substance, you complain about the process."

Those on both sides of the issue express strong opinions, and to separate fact from fiction, the legislation's actual requirements must be examined.

After May 11, 2008, federal agencies, including the Transportation Security Administration, will no longer accept state drivers' licenses unless they have the following data included or embedded: the driver's full legal name, date of birth, gender, permanent address, signature, driver's license number and digital photo of the person's face. In addition, the card must include physical security features -- not yet determined -- and be machine-readable by technology that has not yet been defined.

These undefined elements of the legislation give cause for concern, especially because in less than three years, the entire country will have new drivers' licenses.

"I think there are still a lot of questions up in the air," said Schwartz. "You can look at the American Association of Motor Vehicle Administrators [AAMVA] standards for some of the issues, like 'machine-readability,' and in the Real ID Act, that term is undefined. It uses the term 'digital photograph,' and that's not defined. It says that [states] need to give 'electronic access' to other states on the back end, and that's not defined. If I were a state, I would hope that would be resolved in the DHS soon."

To obtain a valid driver's license under the new federal mandates, a citizen will be required to present extensive documentation. Each state will require, and must be able to verify, a photo identity document -- or a nonphoto identity document that contains both the applicant's full legal name and date of birth. The state must also verify a person's name, primary address, date of birth and Social Security number -- or proof of Social Security ineligibility.

Unfortunately for everyone, it appears more than likely these documents will need to be presented in person, which means everyone in America will need to head to the DMV before May 11, 2008.

Citizen Impact
Despite the questions over the Real ID Act's passage through Congress, and the uncertain language used in its text, the legislation will make it much more difficult to produce and distribute fraudulent identification documents. The bill requires states to implement advanced security features, which the DHS will define in coming months.

It's unclear, however, when exactly those details will arrive.

"There are people here working on it," said DHS spokesman Jarrod Agen. "But I haven't seen any kind of official timeline for regulations or definitions just yet."

Prospective vendors of the new technology aren't waiting for DHS announcements. Companies such as Anteon and Lasercard -- based in Fairfax, Va., and Mountain View, Calif., respectively -- have developed high-tech ID cards that incorporate security features such as embedded biometrics, laser engraving and optical memory storage, which are just a few features that can address the Real ID Act's requirements.

"One of the things called for in the Real ID Act is increased security and the ability to store data and read data back, machine authentication, those kinds of things," said Steve Price-Francis, vice president of business development at Lasercard Systems Corp., the company that produces the card platform for U.S. green cards. "We have a security feature based on our optical memory technology which will provide a layered level of security and counterfeit resistance. It will provide very rapid visual recognition. We're able to permanently, irreversibly and unalterably laser-engrave a cardholder's face onto a piece of our optical memory."

Another Real ID Act requirement is that every state's DMV databases be available to all other states. The information in these databases must consist of all the information printed and embedded in each person's driver's license. In addition, paper copies of the documents required to obtain a driver's license must be held by each state for seven years, while images of such documents must be held by each state for 10 years.

Though these technologies and requirements are sure to ignite ire with privacy advocates, Jason King, public affairs director of AAMVA, says many states are already practicing most of the Real ID Act requirements.

"The thing to note, that some people tend not to report, is that state DMV administrators are ahead of the curve in building more integrity into the driver's license framework," said King. "A number of the Real ID Act provisions are already under way. For example, one of the directives in the Real ID Act says states must verify the Social Security number of applicants. Well, 42 states are already doing that today, so that's good news. Also, the Real ID Act requires four reliable forms of ID prior to licensing. Most states already require three."

A critical point of contention for states, even if they are already engaged in some Real ID Act requirements, is whether they will be forced to reissue new licenses to those who already have them.

At the National Governors Association (NGA) conference in July, DHS Secretary Michael Chertoff spoke to governors about when to expect details about Real ID Act requirements.

"What's going on now, basically, is our department here is reaching out and working with some states as far as gathering information and finding out how we should move forward," Agen said.

Chertoff's visit to the NGA conference didn't appear to calm the nerves of chief executives. An NGA news release issued after the conference said governors are concerned because "it is unclear whether the 227 million drivers' licenses and ID cards already issued will need to be reissued in the next three years and what the costs associated with that would be, including higher fees for citizens."

Spokespeople for California and Virginia, two of the states allegedly ahead of the Real ID Act curve, shared a slightly more positive outlook as their states prepare to meet the Real ID Act requirements.

"The governor has said many times that it is the federal government's responsibility to protect and secure our borders, so he is certainly pleased to see the federal government taking more steps to do that," said Julie Dobie, assistant press secretary of California Gov. Arnold Schwarzenegger.

Bill Murray, deputy director of policy for Virginia Gov. Mark Warner, expressed a similar but not quite as sunny outlook.

"In terms of getting ready, it is a bit of a challenge because the DHS needs to issue certain regulations and guidelines on doing that, which they are in the process of doing," Murray said. "That's something I know all governors, Republican and Democrat, want to have -- a conversation with the federal government about how to implement this in the most commonsense way. Secretary Chertoff has indicated his willingness to talk with governors about how to do that, and dialog is ongoing."

Immigration Issues
Regardless of political opinion, most would probably agree that U.S. border security is inadequate. That situation, according to some, is an open invitation to terrorism.

The Real ID Act is designed to address these issues by making immigration standards more rigid, and restricting the issuance of drivers' licenses to those who can provide the appropriate documentation.

Immigrants' rights advocates, however, contend that the Real ID Act makes it much more difficult, if not impossible, for legal immigrants to start new lives in America.

"What our organization is most concerned about is when the Real ID Act was drafted and passed, and made its way through the House and the Senate, how it affects and impacts the ability of refugees to get asylum in the United States," said Erin Corcoran, a staff attorney for Human Rights First. "Basically a person has to show that they meet the definition of a refugee, the refugee definition under U.S. law. To be considered a refugee under international and domestic law, you have to show that you're fleeing harm that rises to the level of persecution. The Real ID Act changed the definition."

Like most changes required by the Real ID Act, however, exact details do not yet exist. Before the act, to be considered a refugee, one had to prove they were being targeted "on account of" one of five reasons: political opinion, race, religion, nationality or gender. Fleeing gender-specific crimes and ethnic cleansing were also qualifications for refugee status.

"What the Real ID Act did was it changed the wording from, 'on account of,' to, 'at least one central reason,'" said Corcoran. "So we don't know how that is going to play out. We're concerned that if you're not able to show some sort of proof of at least one of the grounds of persecution, you may not be eligible for asylum."

For recent immigrants, the Real ID Act presents enormous obstacles. To meet the aforementioned documentation requirements, states will not be permitted to accept any foreign document other than a passport. If a legal immigrant doesn't have a birth certificate, for example, it is entirely unclear what, if anything, he or she can do meet the documentation requirements for a driver's license.

Immigration rights groups, like Human Rights First and the National Immigration Law Center (NILC), have expressed concern about the stringency and simultaneous ambiguity of the Real ID Act's requirements for drivers' licenses.

"We think that they are really problematic requirements, and that they are a substantial change," said Joan Friedland, immigration policy attorney at the NILC. "To prove state residency, you'll use utility bills, bank statements -- how do you get those verified by the gas company and the bank? The states are not equipped to do that kind of verification, and the agencies they are going to get it from are not equipped either."

Equal Opportunity Obstacles
The Real ID Act is going to create obstacles that all U.S. residents must overcome.

"You're not going to be able to do online [driver's license] renewal anymore because you have to present documents," Friedland predicted. "A lot of states have set up online renewal. If they have to build back in not only what they had before, but more to handle the new requirements, what's going to happen with that?"

Friedland also observed that the DHS has no experience whatsoever with issuing drivers' licenses, which leads one to wonder just how efficient this process will be. Interestingly, Indiana pulled the plug on its popular online driver's license renewal system when its Legislature passed a bill requiring residents to renew their drivers' licenses in person.

"Through legislative mandate, we took down that [online renewal] option July 1, 2005," said Greg Cook, communications director of the Indiana Bureau of Motor Vehicles. "There were some concerns about meeting the requirements of the Real ID Act. Due to those issues, that particular feature was eliminated. Obviously our intention is to meet any requirement related to the Real ID Act as we learn more about it and go forward."

For police officers, judges and others in sensitive positions, the Real ID Act is cause for concern. The act appears to threaten a protection most states have offered for many years: allowing these individuals to remove permanent addresses from their drivers' licenses. According to the text of the Real ID Act, no exception is made for any citizen and the permanent address must appear. This is not only a problem for some government employees, it is a case of federal law superseding state law.

"There are things that I think they just didn't think about," said Schwartz. "I don't think anyone would contemplate a security bill that hurts law enforcement -- that hurts undercover cops. This bill just says permanent address -- period. There's no negotiated rulemaking. So you just have to assume it's overriding all those states that have those laws."

Despite concern about the Real ID Act's ambiguity, there is one aspect that virtually everyone agrees on -- cost. Almost everyone familiar with the act believes it will be expensive to implement. The disagreements arise when trying to determine who -- the state or federal government -- will be footing the majority of the bill.

In the end, of course, taxpayers will most likely bear the burden.

"I think most of the uproar comes from the lack of funding for this piece of legislation," said King. "Here we have a piece of legislation that is moving driver-licensing practices into the 21st century, but there is no 21st-century funding to go with it."

Friedland guessed that the Real ID Act will cost billions, and Schneier agreed.

"Real ID is expensive," said Schneier. "It's an unfunded mandate. The federal government is forcing states to spend their own money to comply with the act. I've seen estimates that the cost to the states will be tens of billions."

Even Murray admitted the act is going to weigh heavily on state government budgets. Exactly how heavily remains to be seen.

"Certainly it is going to take significant funding," he said. "Exactly how much will probably be dependant on some of the specifics of implementing the act, but it is going to be a significant cost to the states."

Coming Soon
Depending on whom you believe, the Real ID Act is either the desperately needed reformation of a major security gap, or an example of an Orwellian government exerting control over the lives of its citizens.

Only a few things are certain.

This bill is law; states have until May 11, 2008 to comply; every compliant driver's license will have embedded personal data about the cardholder; a national database will contain information on every American and legal immigrant who holds a compliant driver's license; it will be far more difficult for immigrants -- legal and illegal alike -- as well as refugees and even citizens to get drivers' licenses; and finally, the Real ID Act is going to cost a lot of money.

Will the Real ID Act make America safer? Or will May 11, 2005, be remembered as the beginning of the end of a democratic America? The real answer is probably somewhere in between. Opponents like Schneier fear this act is another indication that America is moving toward a police state.

"Security is a trade-off; we have to weigh the security we get against the price we pay for it," he said. "People who know they're being watched, and that their innocent actions can result in police scrutiny, are people who become scared to step out of line. They know that they can be put on a 'bad list' at any time. People living in this kind of society are not free, despite any illusionary security they receive. [The Real ID Act] is contrary to all the ideals that went into founding the United States."

Proponents like Lungren see the Real ID Act as a reasonable way to protect American citizens.

"[The 9/11 hijackers] deliberately chose drivers' licenses and state IDs as their identity documents of choice because state IDs and drivers' licenses give you a credibility. We need to ensure they are more difficult to get so the next Mohammed Atta is not able to use his six-month visa to obtain two drivers' licenses -- one good for five years and one good for six. These are provisions that make it more difficult for terrorists to hide in the open, like they did on 9/11."

Whatever you believe about the government, immigration, terrorism and the Real ID Act, those beliefs will be put to the test in less than 30 months.